Of all the concerns that patients raise before certification, one of the primary issues revolves around the fear that their use of medical cannabis could put their jobs at risk. It is an entirely valid concern to have in light of the continued federal illegality of cannabis. However, New York offers some of the best workplace protection laws in the United States for certified medical cannabis patients – although with significant limitations.
Here we provide the definitive guide regarding the legal protections that New York provides (or not) regarding your employment and your medical cannabis certification. If you are thinking about getting certified but would like to know more about your rights, our team at NY Marijuana Card can help link you with a certified provider to help you understand both your rights and the process.
The Legal Foundation: New York’s Compassionate Care Act
The employment protection laws in New York related to medical cannabis can be dated to the introduction of the Compassionate Care Act (CCA) in 2014. Unlike simply allowing the use of medical marijuana, the CCA included employment protection laws against discrimination based on medical marijuana patient status. In essence, the employment protections offered to medical cannabis users in New York were not recently added but have been included since the inception of the program and have been bolstered through case law since then.
What New York Law Actually Protects
Under the CCA, all companies that employ four or more employees are forbidden from discharging, refusing to hire, or discriminating with respect to compensation or the terms and conditions of employment on account of someone being a certified medical marijuana user. That is to say:
- The employer is not allowed to refuse to hire you because of you disclosing that you are a patient
- The employer is not allowed to discharge you because you are a patient
- The employer is not allowed to discriminate against you in terms of pay, promotions, and job conditions because of your status as a patient
Additionally, there is another crucial point in this regard. Certified medical marijuana users are considered “disabled” in accordance with New York law, meaning that they belong to the protected class in accordance with the New York State Human Rights Law (NYSHRL) as well as, for residents of New York City, the New York City Human Rights Law (NYCHRL). And that gives rise to the duty on the side of the employer of engaging in a good faith interactive process before disciplining a certified medical marijuana user or taking any other adverse action against such person.
What New York Law Does Not Protect
This is what the patients tend to misunderstand most, and it’s essential to get this right. The law does not protect employment regarding the usage of cannabis in the workplace. This means that your status as a certified user does not protect you from being disciplined for being under the influence of cannabis during the work period.
More specifically, your employer has the right to:
- Ban the use of cannabis at work
- Discipline or fire you for showing up for work under the influence of cannabis
- Maintain a zero-tolerance policy toward drug use
- Limit the use of cannabis by employees holding positions of safety sensitivity
It is important to mention that your status as a certified patient provides you with the freedom to use medical marijuana but not at the workplace or while under the influence while being at work.
The Federal Exception Employers Can Rely On
One final exemption patients should know about is the fact that the CCA excludes any requirement that would place an employer in violation of federal law or the risk of losing a federal contract or government funding. Due to marijuana being illegal under federal law, it is particularly relevant for the following groups of people:
- Federal workers
- DOT-regulated positions, many commercial drivers
- Employers with federal contracts and drug-free workplace provisions
- Federally regulated industries where the use of cannabis may be prohibited even outside work hours
If you fall into any of those groups, it is important to remember that New York State provisions do not necessarily cover you.
Safety-Sensitive Roles Are a Gray Area
Safety-sensitive jobs fall into the gray zone of employment restrictions on cannabis in New York outside of those industries which are governed by federal laws. If the nature of your job includes handling machinery, driving, using hazardous equipment, or something of that sort, then your company has good reason to prohibit your use of medical marijuana in cases where such usage is likely to endanger your safety and that of your colleagues and the general public, whether you are presently intoxicated or not.
What Happens If You Fail a Drug Test as a Certified Patient
This is a very common area of confusion, since the use of marijuana may be detected in drug tests for much longer than the period of time during which its usage causes impairment. The practical point here is that once you notify your employer about your being a certified patient in New York, they must comply with their duty of accommodation regardless of whether it happens before or after you fail a drug test.
This is precisely the reason why having the proper documentation is extremely important. If you are a certified patient, then making sure that it is easy to get access to this documentation can make quite a difference in the situation.
Tips for Protecting Yourself as a Certified Patient
- Understand your job classification. Learn about whether your job position is a safety-sensitive or federal position before concluding that you qualify for the fullest state protection.
- Check your employer’s written drug policy. Given that companies need to enforce their policies of testing and punishment consistently, knowing what is in writing helps you get familiar with your position.
- Be ready to show proof of your certification. In case any dispute with the testing procedures occurs, showing the proof will help you start enjoying your rights under the law.
- Never smoke weed at work or arrive at work impaired. No matter how well-protected you are, being impaired at work will leave you outside the legal framework.
- Get advice from an employment lawyer if needed. Protections in New York are quite nuanced, and a competent lawyer will be able to evaluate your job position and your employer’s policy.
Why Certification Still Matters, Even With These Limits
Despite all of these critical considerations, having certification as a medical cannabis patient in New York will offer you genuine legal standing that adult-use consumers cannot access. Adult-use consumers will have far fewer workplace protections regarding the use of the product outside of work, while medical cannabis patients will be eligible for disability discrimination protections, along with an interactive accommodation process. As someone who is dealing with a qualifying condition, certification will not only help you take advantage of the specific dispensary benefits but will help you establish your legal position.
How NY Marijuana Card Can Help
Certification is a way towards all those benefits, and NY Marijuana Card streamlines the whole process. We offer New York residents a connection to licensed registered doctors by means of telemedicine appointments, which will enable you to determine whether you are eligible or not without taking any days off from work or having to wait in a doctor’s office.
Knowledge about your rights as a patient begins with actually being one. If you have delayed certification out of fear for your job security, remember that there are many legal protections available under New York State Law that ensure your status as a patient, but not for those using cannabis recreationally. Visit nymarijuanacard.com for information about your eligibility.
Frequently Asked Questions
1. Can I be fired in New York just for being a medical cannabis patient?
No. The Compassionate Care Act states that employers who employ four or more people may not terminate, refuse to hire, or discriminate against an individual only because he/she is a certified medical marijuana user. But workplace impairment is not protected.
2. Can my employer still drug test me if I’m a certified patient?
Yes. Your employer may continue to conduct drug tests as long as he does so under a well-documented policy. But your rights will not be compromised until you inform your employer about your certification.
3. Does New York law protect me if I use cannabis during work hours?
No. New York does not protect you from being terminated or disciplined for using cannabis while on the job. Your protection lies in being a certified medical marijuana user and off-duty use of cannabis.
4. Are federal employees protected under New York’s medical cannabis employment law?
Generally, no. The Compassionate Care Act provides an exception for employers to be exempted from protections if it violates federal laws or risks loss of federal funding or contracts, thereby affecting federal employees and DOT positions.
5. What should I do if I’m disciplined after failing a drug test as a certified patient?
Present your certification proof to your employer at once. Once your employer becomes aware of your certification, you come under the jurisdiction of New York’s anti-discrimination and accommodation requirements, even if it is post-failure of the test.
6. Does being a safety-sensitive employee affect my job protections?
Yes. Employers may have legitimate grounds to restrict medical cannabis use or take adverse action in safety-sensitive roles if use poses a direct risk to the employee, coworkers, or the public, even without on-the-job impairment.
